Is the Kinderhook Kickback Constitutional?

A few people on Twitter have asked whether the provision secured by New York Republicans to end Medicaid reimbursements in New York for county expenditures outside of New York city is constitutional. The answer is that it’s very difficult to answer that question. I, personally, don’t see a serious constitutional issue but whether the Supreme Court would is a different question.

I can certainly see an argument that the Elmira Emolument* is inconsistent with the spending powers doctrine minted by John Roberts in Sebelius. The Watertown Wallet-Grab attempts to use Medicaid funds to force the state to change its policies concerning who is responsible for Medicaid spending. One could argue that this is an unconstitutional use of the spending power. But, of course, one could also argue that the Buffalo Bribe is more like the conditions placed on highway spending in South Dakota v. Dole, and does not rise to the level of being unconstitutionally “coercive.”

In other words, I can’t really answer the question of whether the Glens Falls Grift is unconstitutionally coercive because the Medicaid expansion holding Sebelius is ludicrously incoherent and unprincipled and offers no meaningful guidance to Congress. I would compare it to Potter Stewart’s legendary concurrence in Jacobelis except that the invocation of “hard-core pornography” gives Stewart’s standard more content than Roberts’s. The line between what is constitutionally and unconstitutionally “coercive” is completely unknowable. Well, not entirely — since this policy was passed by a Republican Congress is it overwhelmingly likely that the Republican Supreme Court will uphold it. But to paraphrase the Chief Justice, his opinion in Sebelius will have nothing to do with it. Hopefully the point will be moot.

*Although I like the various “kickback” metaphors, they’re actually far too kind to the New York Republicans, who didn’t exactly drive a hard bargain for what by all rights should be career-ending votes. I mean, say this for Ben Nelson — he tried to get more money for his state. At best, the Kinderhook Kickback would be neutral on net, and if Albany is forced to change its Medicaid disbursements because TrumpCare passes it’s entirely possible they would just put other mandates and/or reduce aid to the counties, making them no better off. Heckuva job!